(DUI) Defense Lawyer Interviewed by Tom Leykis

Orange County DUI lawyer, Myles L. Berman discusses drunk driving laws and penalties. In the first section of the interview, the “business” aspect of DUI law enforcement is discussed and the question is asked, does law enforcement tacitly benefit from the immense costs associated with DUI penalties?

Tom Leykis: Well you’ve been hearing the drunk drivers calling in and you’ve been hearing the people that are all upset about it. You can only take so much of that. You think of a drunk driver, you think of some guy who went to a bar and had a few too many and got in the car and he needed to get himself home. We get the people that take it that extra step. They’re mixing drinks in the front seat. That one guy had 15 beers. He’s had four DUIs. He had 15 cans of Bud Light sitting in the back seat, one in the cup holder. That’s right. We had a teacher. We had a police officer driving drunk. There are no words to describe all of this but that’s the way it is. So we know there are many of you out there who are boozing. Boozing and cruising and some of you are aware of the existing laws. I would suspect many of you are not aware of what you might be letting yourself in for. But our guest knows all about that because his name is Myles L. Berman and he is an attorney whose specialty is DUI law in the state of California. It’s good to see you Myles.

Myles L. Berman: Good to be here, Tom. Good to see you again.

Leykis: Well, here we are: another holiday season and some more drunks calling in. Did you hear that?

Myles L. Berman: I was listening to the show. Your screener is excellent and the calls were—

Leykis: Oh yes, if a little dense. But as you know he’s Italian so you have to excuse him.

Myles L. Berman: I’ll leave that alone (laughter). But I was listening to the show on the way in and while I was here. Very interesting bunch of callers you had today.

Leykis: Now what can we learn from all of that? I’m still absorbing it. What can we learn from that?

Myles Berman: You know I don’t think there is anything that people are going to learn. Obviously nobody wants people drinking and driving. It does pose a serious danger. But until there’s prohibition, this is going to happen. It’s as simple as that.

Leykis: It seems to me, though, on the one hand they say they want to cut down on drunk driving and they run all these threatening public service announcements. They even buy commercials threatening us, “Cops are cracking down. They’re coming to get you.” And by the same token it seems to me that there are people that get out there and keep doing it over and over and over. I mean I’m seeing stories about, like the guy that called in who had four DUIs, two years in prison and he’s out driving drunk again. Some people have had 10, 12, 15 DUIs. It seems to be that on the one hand they say they want to cut down on drunk driving but on the other hand it seems to me that this system that they’ve created of charging people fees and fines and then charging them to go to alcohol reeducation classes. That’s a very profitable business for the states. Why wouldn’t they just say alright you’re getting five years in prison, that’s it?

Myles Berman: Yeah, you’re absolutely right. It’s a big business for all states, especially in the state of California. It’s a multi-billion dollar industry. But the good news is that the callers that you were talking about. You know, four or five DUIs, been to prison, that’s a very small percentage of the people who actually drink and drive. The overwhelming majority of people who get arrested for DUI are first time offenders. Alleged first time offenders.

HOW MUCH DRINKING IS TOO MUCH? WHAT YOU SHOULD KNOW IF INVESTIGATED FOR DUI IN ORANGE COUNTY

Myles L. Berman and Tom Leykis discuss the amount of alcohol one can drink before he or she is risks being over the legal limit for DUI. Myles Berman points out problems with portable breath test machines and false blood alcohol content reading results. Myles L. Berman gives advice on what you’re legally required to tell a police officer if you’re pulled over for suspected DUI. Read on to find out what you should and shouldn’t say to an officer, and what to do if asked to perform field sobriety tests in Orange County

Leykis: Yes. And the bottom line on that is—well, I have a feeling a lot of people have no idea how little alcohol it takes to be considered in that realm of a DUI.

Myles Berman: Well, yes. So now you’re getting to another area that I call voodoo science. Each drink, one four ounce glass of wine, one 12 ounce can of beer, and one shot, which is an ounce and a quarter of 80-proof hard liquor equals a .02. So you can have four in your system, generally speaking, you’re at a .08. The problem is that the state uses these portable breath test machines—and any kind of breath test machine—which is based on voodoo science. So it doesn’t even take three or four to get caught up in this web. It can take two or three or even less and you have a false reading and the government thinks that you’re at a .08 or greater and you’re under the influence of alcohol.

Leykis: So if somebody is pulled over and they do increase the patrols, they do increase the checkpoints at this time of year. We all know that here in Southern California. Alright so you’re pulled over and it might be because you’re driving funny or it might be because—

Leykis: You’re driving a red car. We all know there’s all kinds of reasons people get pulled over. Let’s say you’ve had a few. What do you say to the officer?

Myles Berman: Well people don’t have to tell the officer where they’re coming from or where they’re going to. It takes a strong constitution for a person to actually stand on their rights. But people have to be aware that there is an excellent chance they’re going to be audio taped. They’re going to be video taped. So what they say and how they conduct themselves, there’s a good chance that it’s going to be recorded. Not to mention the officer is free to write down whatever the officer wants to write down after the arrest occurred and they fill out the paperwork. But the most important thing is always be polite.

Leykis: Now when you are polite with an officer, again—this is a very threatening situation. I mean, look, in your head when you’ve had two beers and left the office party you think, I’m guilty. Here are those lights in my rearview mirror. Oh God, they can tell I’m drunk. I’m guilty. And I think a lot of people just throw themselves at the mercy of the officer. They just say (laughter) I just had a couple of beers, officer. Or they’ll get out and do the sobriety checks or the sobriety tests or whatever, but really what should people do in a situation like that?

PULLED OVER FOR DUI? WHAT YOU DON’T HAVE TO SAY

Many people admit to drinking when questioned by police officers after being pulled over for suspected drunk driving. Orange County DUI Defense Attorney Myles L. Berman points out that citizens can stand on their rights; they’re not obligated to give incriminating information to police, which can make fighting a DUI more difficult.

Myles Berman: Well, you’re absolutely right that it becomes a surreal experience. They don’t have to do any of the field sobriety exercises. I call them exercises because they aren’t really tests. I’ve never seen anybody driving down the street with their eyes closed, their head tilted back, they’re counting on their fingers, one, two, three, four, four, three, two, one, or even touching their finger to their nose while they’re driving. So a person does not have to tell the officer where they are coming from, where they are going to, how much they’ve had to drink, when they drank, where they drank. And they don’t have to do the field sobriety tests especially if they are older than 21 and definitely do not take a portable breath test before somebody gets arrested.

Leykis: Don’t people often cop to say, “Oh officer, I had a couple of beers?”

Myles Berman: Yes, most people do say that they had something to drink. I mean a high percentage of people say they had something to drink.

Leykis: Should that not say that?

Myles Berman: Well, if they don’t say anything—I don’t want to tell people they should lie to a police officer so I’m not going to say that, but I will say that they don’t have to tell the officer the information that the officer is looking for in order to not only arrest the person but prosecute the person or help prosecute the person in court.

Leykis: So how do you handle this? Again, the officer is in a powerful position. He’s got a weapon. You’re scared. You know you did something you shouldn’t have done. What do you say?

Myles Berman: Well it’s not against the law to drink and drive. People have to understand that. We’ve heard—we’ve been hearing this in the media and on television for years, “don’t drink and drive,” and that’s just not the law. People are conditioned to think that way. But when you’re in that particular situation the best think to do is to say as little as possible. And don’t answer those questions that you’re not legally obligated to answer. Basically you need to show your license and registration but pretty much anything beyond that, you don’t have to cooperate with the police officer. Now, they may end up arresting you and they may end up taking you to jail, but there is a good chance that’s going to happen anyway, so why give them more evidence that they’re going to use to prosecute you?

Leykis: And again I think that people don’t—I have the experience of having been through depositions, I’ve been sued, I’ve had to deal with being in court. I’ve had to testify on a witness stand. I think a lot of people say too much. I don’t just mean in a case like that. I mean in general, whether they’re in a deposition or wherever they are. Every attorney I ever had said say as little as possible. Say nothing if you can get away with it, let everybody else talk. Give very brief answers, don’t be helpful. Would that apply to being pulled over on suspicion of DUI?

In this segment of the interview, Myles L. Berman discusses refusal of DUI blood alcohol tests and government’s right to force a fluid sample from DUI suspects. Tom Leykis asks the best ways to get pulled over for DUI and not get arrested, and whether any groups other than attractive women get off the hook easy.

MylesBerman: Well yeah, I think when someone is being investigated for DUI, less is better. I mean, there is no question about that. If you start volunteering information to the officer—the officer knows that they’re in a position of power and a position of authority and at that very moment the only thing that’s separating you and freedom is that officer. And they know it and they’re trained. More often than not they don’t even have to do anything other than just stand there and be there in order to assert their authority. But yes, you’re absolutely right, the less information a suspect gives a police officer the better off they will be. Now having said that, that doesn’t mean that we can’t win cases—of course we can win cases when police officers ask a whole slough of questions and people answer every single one of those questions. You haven’t asked the real—I know you’re building up to it and I know it’s coming so we might as well deal with it now. After you’re arrested in California you have a choice of a blood or a breath and in California a breath test is two samples. So here’s how I answer that question, both breath and blood are not completely reliable, especially the way the state collects the evidence. Now breath tests machines are less reliable than blood results, but blood results also have problems as well. As far as whether or not somebody should take it, I can’t say that somebody should refuse to take a blood test or breath test because the law requires that they have to take that. But the on the other hand, the law also— When we get our drivers licenses—this is where it comes up—we consent to take a breath or a blood test when we get arrested. People can withdraw that consent and so again, the evidence against somebody without a chemical test—a breath or a blood test—will be less, but on the other hand if there is a conviction the penalties can be greater both within court and with the DMV.

Leykis: So okay, if you refuse to take it, and again people feel threatened and they may feel that their faculties are a bit reduced. Maybe they feel they are more reduced than they actually are because they are afraid and they’re in a position where they feel threatened. Do officers have techniques to try to intimidate you or force you to do this?

MylesBerman: You know I’m glad you asked that. It’s a great question. There are some jurisdictions where they actually—if a person refuses to take a breath or a blood test, there are some jurisdictions—not just in California but throughout the country, but especially in California and especially in Southern California—where we’ve see the officers actually hold the person down, they call in a nurse. I called her Nurse Ratchet in a trial once and the judge didn’t appreciate that. But they’ll call in a nurse and stick a needle in the arm and withdraw the blood.

Leykis: Really?

Myles L. Berman: Yeah. It happens and it happens on a regular basis but it doesn’t happen to everybody all the time. Yeah, I mean this is what we’ve gone to. This is where we’ve come from. And the test is does the blood draw shock the conscience of the court? And courts have ruled that these types of blood draws don’t shock the conscience of the court.

Leykis: Before we take this break here. We’re talking to Myles L. Berman who is an attorney who specializes in drunk driving and Myles has been on our show, over the years, many, many times. Does anybody get off the hook? Do pretty girls get off the hook? Is there a way you can talk to a police officer? I know people who’ve told me point blank, they said, “I was drunk. There was no doubt I was drunk. And the officer said, ‘Hey, just go home. Be careful…’” You know, what are the reasons for that?

MylesBerman: I can’t say that we’ve had cases like that because they ended up not getting arrested, but I have heard stories like you just said where people are sometimes able to talk their way out of a DUI. Also as more time goes on, I’m hearing less and less of that. But yes, it does happen, obviously.

Leykis: I was just wondering if there was a technique. Maybe there is a police officer out there that can answer that. Of course they probably won’t want to answer that question, but I’m wondering who are these people? Besides pretty girls, I understand that pretty girls do get that kind of advantage in life.

Myles L. Berman: I would describe them as very lucky people…because getting a DUI can absolutely devastate a person’s life, because the penalties are so severe. I’ve been talking about it for years to make—to decriminalize most first offense DUI cases, but you get convicted of a DUI, you can lose your job, lose your license, lose your livelihood, you can lose your ability to continue to support your family. It’s a terrible thing to have to go through.

THE EXTREME COSTS AND PENALTIES OF DUI CONVICTION

The following section of the interview discusses the extremely high costs and penalties of being convicted of driving under the influence. In addition to lawyer’s fees, court fees, fines, DMV fines, loss of driving privileges, and other penalties, many professional associations and employers look negatively on DUI convictions. A DUI can cost you your livelihood.

Leykis: And above all it costs you a fortune.

MylesBerman: Yes, it could. Over the years you’ve tried to get me to talk about my fees and I’ve always tried to dance around it. (laughter)

Leykis: We haven’t even gotten to your fees, yet… just your insurance alone.

MylesBerman: Yes. We’ve been told that insurance can increase anywhere between 15- 25 thousand dollars over the next 3, 5, to 7 years once somebody is convicted of a DUI. And as a matter of fact, DUIs now stay on your record for 10 years. It used to be five, then seven, then they tried to change it to change it to lifetime and two or three years ago they compromised and said, no it’s going to stay on your record for 10 years; however, I believe it’s going to go to lifetime within the next few years. It wouldn’t surprise me if they changed the law to lifetime.

Leykis: Just an extraneous question here. Does that somehow turn up on your credit rating or like your FICO score?

MylesBerman: Yes, yes. DUIs affect all aspects of life and in credit reports we’re seeing—or we’re hearing stories where DUI convictions are coming up in credit reports. Job searches: when people do interviews and go through background checks, DUIs come up. For professionals if they’re looking for insurance, you know, doctors, lawyers, whatever your profession requires… Malpractice insurance: insurance companies inquire whether or not there is a DUI conviction. And I’m sure there are people out there who know exactly what I’m talking about who had a DUI conviction and it ended up following them for the rest of their lives.

Leykis: Myles L. Berman is our guest. You may have questions about what happens if you get pulled over, in case you get pulled over—nabbed in one of these dragnets they have out there. One of those checkpoints for DUIs. Maybe you’ve gotten nailed. Maybe you’re afraid of getting nailed. Who knows? Maybe you’re not drunk at all and you get—by the way that did happen to me once and I talked about it in one of your commercials many years ago. I got pulled over and I took every sobriety test and they kept me there for about 45 minutes chatting with me. Finally they said, “You’re not drunk.” And the police officer handed me his business card, writing down that I had already taken all the tests and that I’m not drunk and that I should be okay to go home in case I got pulled over a second time.

MylesBerman: Well you sound like one of those people that you were just talking about a few minutes ago where they’re able to talk their way out of getting arrested. One of the ways, of course, is not to have anything—

Leykis: Not to be drunk! That’s the best way to do it.

Myles L. Berman: Don’t drink and drive.

Leykis: Exactly. We’ll take a break and we’ll take your calls with Myles L. Berman next.

Leykis: We are here with DUI attorney Myles L. Berman and I promise not to ask you what the L stands for.

MylesBerman: And I won’t tell you it stands for Lee.

Leykis: Lee? Okay. I thought it was like “lawyer.”

Myles L. Berman: Maybe it was a premonition. My folks had an idea when they named me. I’ll have to ask them that one.

Leykis: Let’s take some calls with you at 1-800-5800-TOM. Let’s start here this hour with Eddy on the Tom Leykis show for Myles L. Berman.

CALLER QUESTION: CAN DUI CHECKPOINTS STOP EVERY CAR?

In this segment, Myles Berman addresses the political and economic pressure law enforcement agencies are under to “yield” the most arrests and revenue from a California DUI checkpoint.

Eddy: Hey, how are you guys doing?

Leykis: Doing okay, Eddy,

Myles L. Berman: Hi Eddy.

Eddy: Question, I drove through a checkpoint a few days ago in the city here, Montebello, and every car they were pulling over, you know, whether or not they were thinking the person was drunk driving. They were having everybody take a breathalyzer test. Is this something that we can refuse if they have no suspicions that we are drunk driving or are these new tactics that they’re using just to narrow down or find people who are drunk driving?

Myles Berman: Well, first of all it sounds like you went through the checkpoint later on in the evening or the early morning. Is that accurate?

Eddy: Yeah, later on in the evening.

Myles Berman: Yeah, here’s what happened to you. You have to understand that checkpoints are actually designed to be revenue raisers. These checkpoints are funded and often times it’s multi-government task forces and in order to have the checkpoint funded, they have to make arrests and they have to justify the checkpoints, so these things are done throughout the year so they get money from the government. So in order to justify the checkpoint they have to make arrests. Normally a checkpoint cannot be for every car. It has to be for every third car, or every fourth car. And that so, somehow it makes the checkpoint reasonable, although I don’t think checkpoints are reasonable anyway, but that’s a separate issue. So what happened to you, by the time they got to maybe 11, 12, 1 o-clock in the morning, whatever time it was that you went through, they didn’t have enough people that they had arrested, so now they started to try and put the pressure on and stop every car, as you said, in order to find people to arrest for DUI. So eventually they get the numbers up and justify the checkpoint. As far as breath tests, no they can’t give you any kind of breath test without some type of reasonable suspicion. They can’t just arbitrarily pull you over, but it sounds like what they did—they stuck a breath test machine in everybody’s face? Is that what they were doing?

Eddy: Yes.

Myles Berman: Well, they’re not supposed to be able to do that. They’re not supposed to do that and those portable breath test machines are completely voluntary. You heard the show earlier when I was saying that if you’re over 21, refuse that test, right?

Eddy: Right.

Myles L. Berman: So yeah, you absolutely can refuse. And people should refuse. The question is, now they’re going to investigate you more because they have more suspicion, but then again, you have the right and you should exercise the right not to give breath samples when you don’t have to.

Eddy: Okay. Okay now, if I would have refused, which I wasn’t drinking, but—

Myles Berman: Let me restate that. If you’ve had nothing to drink, take all the tests they give you. I mean all the breath tests. There’s no problem with that one.

Eddy: But if you refuse to take the breath test and you’re sober, then they would do what?

Myles Berman: You would hope that if they don’t have enough evidence and aren’t able to collect enough evidence that they wouldn’t prosecute people, but they do. But if you’re drinking and driving and your numbers are up there and you’re going to get arrested anyway so why give them the evidence?

Eddy: Right. Right. Alright, well, thanks for the information.

Myles Berman: You’re welcome.

CALLER COMMENT: “NON-DUI” CHECKPOINTS IN SOUTHERN CALIFORNIA

Police checkpoints are now being used to check for more than DUI enforcement. Can the police pull you over and question you without reasonable suspicion or probable cause?

Derek: I had a question. It’s kind of similar to the other guy’s. I just want to know when it comes to checkpoints because I work in Pasadena and they do checkpoints not just for drunk driving but they do checkpoints to check drivers licenses and thinks like that. I mean, I was under the impression that in order to pull you over they had to have some sort of reasonable suspicion.

Myles Berman: Yeah, you know, checkpoints started back in Michigan years ago for DUI cases. And eventually they were held to be legal and governments all over and police agencies all over the country and all over the state took that and ran with that to have checkpoints for no just drivers licenses, but to make sure that cars are registered, to make sure that seatbelts—people are wearing seatbelts. To make sure that children who are supposed to be in car seats are actually in car seats. All of this is used as a pretext for the government to further erode and invade our rights and brand as many people as possible convicted criminals.

Derek: Yes, sir. But I was wondering is there anything that you can do to say, like, “No, I don’t want you to check me.”

Myles Berman: Yeah, you can. You have the right to refuse, absolutely. You don’t have to cooperate with the police officers. As a matter of fact—and again, if you’re older than 21. If you’re under 21 and they pull you over then you should take the portable breath test machine. It’s a .01. It’s zero tolerance but the rules are different if you’re under 21 versus older than 21. Yeah, people have the right to refuse to cooperate with the police officer. I think so.

Derek: Okay. Alright, that’s good to know and another thing I was wondering is when you get pulled over on the street and the officer can’t immediately tell you why he pulled you over, can you just say, “Okay, you know, I’m leaving.” That sort of thing…

Myles Berman: Yeah, that may raise some other issues, I mean you have to use prudence and be smart about the situation but if the officer is not going to tell you why they pulled you over, I wouldn’t push it. Again, assume that you’re going to be tape recorded or video taped or audio taped and always be polite and respectful, but you can be firm.

Derek: Of course. Okay.

Myles L. Berman: Good luck to you.

Derek: Thank you very much.

CALLER COMMENT: DRIVING UNDER THE INFLUENCE NOT WORTH IT

Leykis: Derek, thank you for the call. 1-800-5800-TOM. Here’s Harry on the Tom Leykis show for Myles L. Berman. Hello.

Harry: Hey, Tom. How are you doing?

Leykis: I’m doing great.

Harry: Good, I actually was a client of Myles. Tara and Wade actually helped me out years ago…about two-and-a-half years ago.

Myles Berman: Very good.

Harry: Yeah, I mean I have to tell you. It is no joke. I didn’t appreciate that officer calling in earlier talking about drinking and driving. It’s wrong. I did it, I blew it. I totaled a $38,000 car; I spent a night in jail. I damn near lost my job; I work in law enforcement. I could have killed myself; I could have killed somebody else. It’s horrible. It’s not a joke. It’s not cool. You guys who are drinking 6 packs and driving on the freeway, they have no respect for themselves or other people.

Myles Berman: What’s your first name again?

Harry: Harry.

Myles L. Berman: Terry or Perry?

Leykis: Harry.

Harry: Harry. H-A-R-R-Y

Myles L. Berman: I just wanted to make—for the record—you didn’t know I was going to be on the show and I didn’t ask you to call, did I?

Harry: No you did not.

Myles L. Berman: Okay.

Harry: You and I go way back. You may recall I used to be a blood alcohol expert, actually and testifying in courts and—

Harry: Yeah, the thing is, though, I just went for expungement and that’s another fee you got to pay, too. I mean, the fees never really stop. There’s insurance, and legal fees, and fines, and expungement fees. And plus, like you said, it may be on my record for life if they change the law.

Myles Berman: Alright, well, you know where we are. 888-4-TOPGUN if you need us in the future. Hopefully you won’t.

Leykis: Alright, thank you very much for the call. It’s 1-800-5800-TOM. We’ll continue here on 97.1 the FM talk station.

CALLER COMMENT: HIRING THE WRONG DUI ATTORNEY CAN COST YOU

Leykis: 1-800-5800-TOM is our telephone number. We’re here with Myles L. Berman who is an attorney who specializes in DUI cases. If you have been accused of DUI, he’s the guy you would want to call and of course, he’s the guy you want to call if you have a question about DUI. Right now during the holiday season, lots of people get into trouble. Ed on the Tom Leykis show with Myles L. Berman. Hello. Ed?

Ed: Hey Myles.

Myles Berman: Hey Ed.

Leykis: You busy over there, Ed? I’m sorry to interrupt.

Ed: No, I’m here. I was listening.

Leykis: I said, “Ed, you’re on the Tom Leykis show.” Did you hear me say that?

Ed: No, I think it cut out a second.

Leykis: It take more than a second to say that, Ed. Yes?

Ed: Myles?

Myles Berman: Yes, sir.

Ed: About three years ago—just over three years ago I received my first and only DUI. I split a pitcher with a buddy of mine at a bar and I was pulling out of the bar. Right before I pulled out of the parking lot—it was a really well lit parking lot; I hadn’t had my lights on. So I turned my lights right as I was about to pull out the parking lot. The cop drove by, saw me turn my lights on, pulled me over. I did the whole hocus pocus, song and dance, touch the nose thing and I did pretty well, I think but then when I blew into the first machine it didn’t register. So he called another officer to come over with a different machine to blow into that one and I blew into that one and it registered. I blew numbers and they gave me a DUI, took me to jail, the whole bit. What I didn’t realize afterwards it that they never submitted any of the results from the first machine that I blew into. Couldn’t I have gotten off if I was questioning the fact that they didn’t submit those results?

Myles Berman: You know it sounds like you didn’t hire a lawyer to represent you, am I correct?

Ed: I hired one. I spent over $1000 on him but he just said they had me and plead no contest and he said it would cost a lot more money to take it to court.

Myles L. Berman: Yeah, God forbid it should happen again, remember this number 888-4-TOPGUN because that’s not the way we operate. You know, it’s so important that people get the right type of representation and especially with DUI cases. I know Tom is a big advocate to always have attorneys there to keep you out of trouble but as far as DUI goes, the consequences could be so severe and in your particular case, everything is relevant. And so whether or not they didn’t record the results, because you didn’t pursue the case and take the case to trial, those issues didn’t come out. But often times just because of who we are and because of our reputation and experience, clients don’t necessarily go to trial because the prosecution knows and the courts know that we know what we’re doing and if there is a judgment call as to whether the case isn’t strong enough at the trial stage, often times we get great results. But yes, you need to fight the case. It’s kind of late now to ask so next time, hopefully it won’t happen but if it does at least you have the number.

CALLER QUESTION: DO PERSONAL BREATH TESTERS WORK?

A caller asks DUI Defense Attorney Myles L. Berman if portable breath test machines available for personal use are an accurate way to determine blood alcohol content.

Scott: Hey, I have a question. I’m turning 21. I’ll be 21 next Wednesday and we’re getting a limo, going out drinking and I was curious to find out how well those little breathalyzers that you get for like 30 bucks on the Internet—how well they work and effective they are after you drink. How long does it take before it’s accurate?

Myles Berman: Well, since you’re not going to be driving next Wednesday—by the way, happy birthday—

Scott: Thank you. Well, I won’t be needing it next Wednesday but it’s kind of a concern of mine and so I will be going out now, finally.

Myles L. Berman: Yeah, they may be a good, vague, I mean, some type of measurement as far as what your alcohol level is but it’s certainly not going to help you get out of a DUI. At least I don’t think so.

Scott: Yeah, well let’s say you have a couple of beers and you blow in it and it says you’re a .07 but then you get out on the road. Does your blood alcohol level rise as it digests or—

Myles L. Berman: A couple of beers it would actually be a .04 if it’s in your system at the time but we’ve seen people have a couple of beers and measure a .07. I have no reliability in any breath test device. Either if you buy off the Internet for accuracy, or the same thing with the government uses. I don’t trust them. I’ve seen too many false high readings and too many readings all over the board for no apparent reason other than it’s based on voodoo science.

Scott: Really? That’s good to know. My other question is for Tom. Do you have any recommendations where we should go? I’m calling from Yorba Linda. We’re thinking about going to the Yard House but I don’t know what clubs or what bars to go to.

Leykis: Is there a Yard House in Yorba Linda?

Scott: Well, we’re going to be going out to Newport.

Leykis: You’re going out to Newport. I’m really not an O.C. guy. I’m occasionally in O.C. but not spent a lot of time at bars so I can’t tell you.

Scott: Okay, okay. So no hot spots for an up and coming drinker?

Leykis: Well, no. Just don’t get caught driving drunk is all I can say to you, okay?

Tony: You know I got a DUI last… the weekend of Thanksgiving last year. My question is how do you not get in the situation of being arrested because once you’re arrested it’s like you said, it’s whatever the cops want to put on that report. When I read the report after I got bailed out of jail, it was like Stephen Spielberg had written it. Lots of the things that they put on there, it didn’t seem possible.

Myles Berman: Did you have a lawyer represent you?

Tony: Yes, and I don’t think that he did a very good job because he screwed up the whole DMV hearing. I lost my license for a year.

Myles L. Berman: On the first offense?

Tony: First offense.

Myles Berman: And they got you for refusal?

Tony: The cops put me down as a refusal. They had me in the hospital because they sprayed me with mace. So to treat me for my injuries they had me in the hospital and one of the cops stood in front of me and said, “You have the right to a second chemical test. It can be either breathalyzer or blood,” and I told him stop right there. I’ll take your breathalyzer. One of the cops said, “That’s not an option.” and I said, “What do you mean that’s not an option? You just said it was my right.”

Myles L. Berman: What did you pay your lawyer, if I may ask?

Tony: Well, with all the other things, it was $7500 as a retainer and with all the other crap that came along with the DMV hearings and stuff like that.

Myles. L Berman: Yeah, it’s really important that you make sure to do the research. I mean, we have our website at topgundui.com. We’ve got lists of hundreds of successful DUI cases. I mean, we’ve seen, I’m sure we’ve seen it all. There may be a case of DUI case that could be invented that we haven’t seen but you’ve just got to know what you’re doing both in court and with the DMV. You’re perfect example—sorry to use you as an example of someone who went through it, but you got reports. Just because the officers write down reports, doesn’t mean what they write down is accurate. Often times they write it down later on when they get back to the station. They write it two or three days later and often times when they testify in court they can’t remember what they write down in court, which was written two or three days later after the arrest. So this is not an area of law that people want to mess around with.

Arum: Oh no. I had a question for Myles. A friend of mine got a DUI a couple months ago and when they pulled her over she was driving my car, actually and she gave all the sobriety tests and she even blew into the breathalyzer but apparently the breathalyzer wasn’t working too well but she had got fed up by then. So when they took her to jail she refused to give any further tests. They held her in custody and then they let her go. But my question is, well, a couple things. Instead of towing my car they drove my car and parked it like two blocks out, and then they let her out of jail and she has a court date in a couple weeks. I want to know if she has a case.

Myles Berman: On that one, especially because she hasn’t gone in to court yet, definitely have her call the office at 888-4-TOPGUN first thing in the morning because it wouldn’t be fair to give an opinion right now because I don’t know anything about—I hear what you’re saying but we need to talk with her and get that kind of information directly from her.

Vanessa: Hello. Tom, I love your show and Myles, I’ve heard numerous commercials and I’ve got to say I feel really bad for all the people who have made poor choices and gone and driven while they’re drunk and been pulled over. But my question pertains to marijuana. I used to work for a collective that’s legal here in California. You know that proposition was just recently passed but it’s still under regulation. We were advised and we were given legal counsel when and if we were pulled over if there was any sort of stench in the car—we’re advised not to smoke in the car, of course—but if we were to be pulled over and the cop was going to question us and say, “I think I smell marijuana,” we were told to tell the officer, “I’m sorry, officer, but I don’t smell anything.” My question to you as an attorney is, is that a suitable response or does that lead to more problems?

Myles Berman: If a cop pulls you over and he smells the odor of marijuana in the car, there’s automatically problems. There’s nothing you can say that can take away the odor that the officer is going to smell.

Vanessa: Well, let’s throw in the scenario that there is no paraphernalia in the car, there is no actual pot in the car. You had somebody who was riding shotgun with you that has already left the vehicle with that substance on them, but the smell is still there.

Myles L. Berman: Okay, but that doesn’t change the fact that the odor is there and that’s enough for the officer to investigate further. But you raise an interesting point that I really haven’t addressed yet. When somebody gets arrested for DUI and it’s alcohol, the DMV will attack the license. But, believe it or not, if it’s drugs, the DMV won’t take the license unless the officer thinks that drugs are involved and the person refuses a blood or a urine test. But the DMV doesn’t generally go after a drivers license when it’s a DUI drugs.

Vanessa: But then if it’s drugs, they can prosecute for criminal.

Myles Berman: Well, again if somebody gets arrested for DUI, it could be alcohol or drugs, including marijuana. So it’s not something that you can get around just by saying, “Well, I don’t smell anything.”

Vanessa: So from the step of knowing that you don’t have anything like that, that relates to marijuana in the car and the cop suspects because of his suspicion of a smell that he smells but not necessarily you as the drive do, and you deny any sort of relating to him on that—

Myles L. Berman: Well, there’s nothing… I don’t think there—it’s against the law, you know, driving with the odor of marijuana in your car. It’s just what that may lead the officer to do.

Leykis: 888-4-TOPGUN is the number to call. Myles L. Berman. Myles, always good to see you, thank you.